United States Court of Appeals,
Eleventh Circuit.
No. 94-6699.
The INTERNATIONAL CAUCUS OF LABOR COMMITTEES, Richard Boone,
Reverend, individually and as a member of International Caucus of
Labor Committees, Gary D. Kanitz, individually and as a member of
International Caucus of Labor Committees, Gerald E. Berg,
individually and as a member of International Caucus of Labor
Committees, Plaintiffs-Appellees,
v.
The CITY OF MONTGOMERY, The City of Montgomery Police Department,
John Wilson, in his official capacity as Chief of Police of the
City of Montgomery, Defendants-Appellants.
July 17, 1996.
Appeal from the United States District Court for the Middle
District of Alabama. (No. CV 93-H-519-N), Truman M. Hobbs, Judge.
Before ANDERSON and COX, Circuit Judges, and RONEY, Senior Circuit
Judge.
RONEY, Senior Circuit Judge:
This case involves a challenge to the constitutionality of a
city policy banning tables from city sidewalks. On two occasions,
plaintiffs, The International Caucus of Labor Committees and three
of its members, were distributing literature from a card table
placed on the sidewalk when police told them to leave or submit to
arrest. The district court found that The International Caucus is
an organization devoted to altering the contemporary political
landscape. It distributes literature and recruits new members in
several ways. One of its preferred ways is to place tables in
public areas in an effort to attract people to take its literature
from these tables. Plaintiffs wrote a letter to the City
explaining their desire to promote their views "by setting up
literature tables at public sites." The City's responsive letter
banned tables from city sidewalks. The letter stated in relevant
part:
Your actions do not violate the laws of this city unless you
impede the orderly flow of traffic in the streets and at the
street corners.
Your organization will not be allowed to set up tables or
booths on the sidewalks of this city. These tables or booths
would create a partial blockage of pedestrian traffic and
therefore will not be allowed on the sidewalks. Your
organization may set up tables or booths on private property
where you have the permission of the property owner.
The City maintains that its policy is a complete ban of any tables
on all sidewalks.
Plaintiffs sued the City of Montgomery, its police department
and police chief, seeking a declaration that the City's policy
violated plaintiffs' First Amendment right of free speech and to
enjoin the City from denying plaintiffs the right to distribute
political literature from tables placed on the sidewalks.
The district court, in a carefully constructed opinion,
entered a declaratory decree that the City's ban excessively and
unnecessarily infringes on the plaintiffs' rights guaranteed by the
First Amendment. The court initially held that the placement of
tables on city sidewalks is subject to First Amendment scrutiny and
is therefore subject to the time, place and manner test set out in
Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746,
2753-54, 105 L.Ed.2d 661 (1989). The court then held first, the
City's ban on tables is content neutral; second, it is
inappropriate to conclude on this record that the City's interests
are significant ones; third, even if the City's interests are
viewed as significant, the regulation is not narrowly tailored to
serve those interests; and fourth, since the ban fails the narrow
tailoring requirement, the court need not decide whether the ban
leaves ample alternative means of communication open. The court
denied an injunction with confidence that the defendants would
abide the declaration that the ban is unconstitutional.
We reverse on the ground that a ban against tables on
sidewalks does not implicate the First Amendment, and therefore we
do not review the correctness of the district court's time, place
and manner decision.
Preliminarily, there was some question as to whether the
issue was properly before the Court. Some consideration has been
given by the panel and in the supplemental briefing and reargument
to the fact that the policy here challenged is in the form of a
letter from the City Attorney, rather than being incorporated in a
duly adopted city ordinance. The parties agree, however, that the
policy of banning all tables from city sidewalks is the fixed
policy of the City which will be enforced by the police, the
transgression of which would lead to trouble for the plaintiffs.
The parties are entitled to a decision on the constitutionality of
such a policy. This Court has previously considered the
constitutionality of an "unwritten" scheme for regulating newsracks
in interstate areas. Sentinel Communications Co. v. Watts, 936
F.2d 1189 (11th Cir.1991).
The cases clearly hold that the distribution of literature is
a type of speech protected by the First Amendment. United States
v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983);
Schneider v. State, 308 U.S. 147, 162, 60 S.Ct. 146, 151, 84 L.Ed.
155 (1939); Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82
L.Ed. 949 (1938). The Supreme Court has repeatedly held that
public streets and sidewalks are traditional public fora. Frisby
v. Schultz, 487 U.S. 474, 480, 108 S.Ct. 2495, 2500, 101 L.Ed.2d
420 (1988); Boos v. Barry, 485 U.S. 312, 318, 108 S.Ct. 1157,
1162, 99 L.Ed.2d 333 (1988); Perry Education Assn. v. Perry Local
Educators' Assn., 460 U.S. 37, 44, 103 S.Ct. 948, 954, 74 L.Ed.2d
794 (1983).
There is little authority, however, to guide a decision as to
whether the use of a portable table on a public sidewalk is
constitutionally protected by the First Amendment. The Supreme
Court apparently has never addressed that issue. Only the Seventh
Circuit has directly held that the erection of a table is not
constitutionally protected free speech. "Subsection E (of the
Regulation) prohibits the erection of a table, chair or other
structure in areas other than leased space.... Because this
section does not facially restrict the exercise of guaranteed
rights, we do not find it is constitutionally impermissible."
International Society for Krishna Consciousness v. Rochford, 585
F.2d 263, 270 (7th Cir.1978). In a case involving an almost
identical regulation where "the plaintiffs alleged only that they
have been prohibited from setting up tables," the same court
declined to "overrule Rochford on this point." International
Caucus of Labor Comms. v. City of Chicago, 816 F.2d 337, 339 (7th
Cir.1987). This authority is somewhat tainted by the failure of
the plaintiff in Krishna to challenge that section of the
regulation. But after later approval, that is clearly the law in
the Seventh Circuit.
No other circuits appear to have dealt with the point.
Several district courts have struggled with the issue, as did the
district court in this case. Two cases in the Southern District of
Florida go opposite ways. In International Caucus of Labor Comms.
v. Metropolitan Dade County, Fla., 724 F.Supp. 917, 920
(S.D.Fla.1989), Judge Zloch followed the Seventh Circuit cases in
holding "that the use of tables is not expressive conduct protected
by the First Amendment." He contrasted this with the use of signs
which were held to be classified as expressive conduct protected by
the First Amendment. In a later case which did not refer to that
decision, Judge King, torn between the decision involving
newsstands in Graff v. Chicago, 9 F.3d 1309, 1314 (7th Cir.1993)
("no person has a constitutional right to erect or maintain a
structure on the public way."), cert. denied, --- U.S. ----, 114
S.Ct. 1837, 128 L.Ed.2d 464 (1994), and the newsracks decision by
this Court in Sentinel Communications Co. v. Watts, 936 F.2d 1189,
1196 (11th Cir.1991) ("there is "no doubt' that the right to
distribute and circulate newspapers through the use of newsracks is
protected by the first amendment."), decided that portable tables
for selling T-shirts carrying protected speech message "more
closely resemble the newsracks in the Sentinel case" and fell
within the constitutional protection of expressive conduct. One
World One Family Now v. City of Key West, 852 F.Supp. 1005 (S.D.Fla
1994).
In Nevada, the district court followed Judge King's decision
in holding that a portable table "facilitates" the freedom to
distribute literature, distinguishing chairs, umbrellas, and boxes
which are not entitled to First Amendment protection. One World
One Family Now Inc. v. State of Nev., 860 F.Supp. 1457, 1463
(D.Nev.1994).
The district court in this case focused on the multitude of
newsrack cases to conclude that the table facilitates distribution
of information. International Caucus of Labor Comms. v. City of
Montgomery, 856 F.Supp. 1552 (M.D.Ala.1994). It cast off Judge
Zloch's decision and the Seventh Circuit decision as not
reconcilable with longstanding First Amendment principles. The
court thus held that the use of tables on a public sidewalk to
distribute literature warrants consideration under the First
Amendment. After finding that the complete ban was content
neutral, the district court put the burden on the City to identify
the interest of the City being served by the ban and to show that
the ban was narrowly tailored to meet that interest. No
consideration was given to any concern like that expressed by the
judge who dissented from the dismissal of the complaint in the
Seventh Circuit's International Caucus case, a concern which
reflected a reasonableness standard as being appropriate: "Given
the hundreds or thousands of organizations or individuals who might
want to set up a table at O'Hare, a prohibition against this kind
of action seems not at all unreasonable." International Caucus of
Labor Comms. v. City of Chicago, 816 F.2d 337, 341 (7th Cir.1987).
In any event, with the lack of compelling authority or
reasoning to the contrary, we follow the lead of the Seventh
Circuit and hold that the prohibition against placing any table on
a public sidewalk, for whatever purpose, does not implicate the
First Amendment. The policy of the City implementing the ban need
not be subjected to the various requirements demanded when an
action infringes upon First Amendment speech.
First, in our judgment, the use of the newsrack cases as
precedent for consideration of what other items or structures may
be placed upon a public sidewalk is misguided. Newsracks are sui
generis. They are best explained by Justice Holmes' remark that "a
page of history is worth a volume of logic." New York Trust Co. v.
Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921).
Since the replacement of newsboys, who had free reign to peddle
newspapers in public places, the courts and public authorities have
spent decades working out the law concerning the placement of
newsracks in public places. Because of the long tradition of sale
of newspapers upon public streets which underlies all of that law,
it is a mistake to import wholesale reasoning of those cases into
the consideration of the regulation of other devices which might
occupy public sidewalks.
Second, without the newsrack cases, there is virtually no
authority which would prevent a City from deciding what can be
placed upon a public sidewalk and what cannot. It is public
property. The City authorities are in charge of that public
property.
Third, as long as the regulations do not discriminate in an
unconstitutional way, remain content neutral, and do not deprive
any members of the public of the use of the property for its
intended purpose, the City should not have to carry the burden to
defend those regulations in federal court. Thus, in a case of this
kind, the burden is on the plaintiff to show why any portion of
public property should be burdened for private use. Aside from its
First Amendment argument, the plaintiff here has not demonstrated
any fact which would indicate that it could carry that burden.
Fourth, if the erection of a card table could ever be endowed
with some modest First Amendment protection, such protection should
only be afforded upon the plaintiffs' showing that use of the card
table is necessary to the exercise of free speech rights. This is
a threshold showing that must be made before considering whether
the regulation involved is content neutral, serves a significant
governmental interest, and is narrowly tailored enough to pass
constitutional muster. The record in this case demonstrates
nothing more than that use of a card table would be convenient, not
that it is so necessary that without it the plaintiff's message
would not be heard.
It should be recognized that a recurring problem with street
regulation is that it allows the police to make ad hoc
determinations about obstruction, interference with traffic, and
nuisance factors so the City would run the risk that the regulation
would be unevenly and discriminatorily applied. Precisely because
of these considerations the authorities here settled on a complete
ban, easy to read, easy to understand, and applicable to all. The
policy under consideration here fully satisfies those concerns.
The district court erred in declaring the policy
unconstitutional.
REVERSED.
ANDERSON, Circuit Judge, dissenting:
The majority today holds that the use of a table to facilitate
speech enjoys no First Amendment protection at all unless such use
is "necessary to the exercise of First Amendment rights." Majority
at 2655. Because I believe that this is not the standard that has
evolved through Supreme Court First Amendment jurisprudence, I
dissent.
The Supreme Court has not expressly set forth a test for
determining the degree to which conduct must be linked to protected
speech to be entitled to some level of constitutional protection.1
The closest the Court has come to articulating such a test is found
in City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 108
S.Ct. 2138, 100 L.Ed.2d 771 (1988). The city in Plain Dealer
passed an ordinance prohibiting the private placement of any
structure on public property, and it used that ordinance to deny
the publisher of a local newspaper permission to place newsracks on
sidewalks. Id. at 753, 108 S.Ct. at 2141-42. The Court indicated
that regulation or restriction of conduct implicates the First
Amendment when the "conduct [is] commonly associated with
expression." Id. at 759, 108 S.Ct. at 2145.
The majority would limit to their facts the Plain Dealer
opinion and similar cases involving newsracks, based on a perceived
historical distinction between newsracks and other devices that
facilitate speech. However, the Supreme Court has never drawn such
1
See LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 12-7, at 827
(2d ed. 1988) ("The trouble with the distinction between speech
and conduct is that it has less determinate content than is
sometimes supposed. All communication except perhaps that of the
extrasensory variety involves conduct ... Expression and conduct,
message and medium, are thus inextricably tied together in all
communicative behavior....")
a distinction. To the contrary, the Court has held that the First
Amendment is implicated in regulations banning newsracks containing
commercial publications, see City of Cincinnati v. Discovery
Network, Inc., 507 U.S. 410, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993),
governing the amplification of music, see Ward v. Rock Against
Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989),
restricting the use of sound trucks, see Kovacs v. Cooper, 336 U.S.
77, 69 S.Ct. 448, 93 L.Ed. 513 (1949), and prohibiting the use of
loudspeakers, see Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92
L.Ed. 1574 (1948).
Had the Court adopted the majority's requirement that such
devices be "necessary" to the speech itself, it would not have
conducted the "time, place and manner" inquiry that it did in each
of the cases cited above. It would simply have held that sound
trucks, amplifiers and commercial newsracks are not "necessary" to
the expression they broadcast (for surely the same expression could
have been made without them), and thus are entitled to no
constitutional protection whatsoever. This, however, the Court did
not do.2 Instead, the Court, consistent with its prior
2
It does not stretch the analogy to say that newsracks,
loudspeakers and tables similarly enlarge the potential audience
for a speaker's message. Just as a loudspeaker increases the
number of people who can hear a spoken message, so too newsracks
spread throughout a city increase the number of people who can
receive a printed message. In the same way, a table on which
literature is placed and to which posters are attached, as here,
increases the potential audience for the message when compared
with the number of people that could be reached by speaking with
each individually. These devices all enhance the delivery of
protected speech, and though they are not entitled to the same
protections as the speech itself, they are entitled to the
protections afforded by the "time, place and manner" test. As
the Supreme Court noted in Metromedia, Inc., v. City of San
Diego, 453 U.S. 490, 502, 101 S.Ct. 2882, 2889-90, 69 L.Ed.2d 800
jurisprudence, endeavored to balance the individual right of free
expression with the "authority to give consideration, without
unfair discrimination, to time, place and manner in relation to
other proper uses of the streets." Cox v. New Hampshire, 312 U.S.
569, 576, 61 S.Ct. 762, 766, 85 L.Ed. 1049 (1941); see also Plain
Dealer, 486 U.S. at 763, 108 S.Ct. at 2147 ("Presumably in the case
of an ordinance that completely prohibits a particular manner of
expression ... the Court would apply the well-settled time, place
and manner test.").
In my view, the proper threshold question is whether tables,
when used to display expressive media such as books and posters,
are commonly associated with a protected form of expression. A
summary review of cases from Federal courts around the country
reveals that tables are frequently used by those seeking to
disseminate ideas and distribute literature on sidewalks, in
airports, and in areas where people gather. See, e.g., United
States v. Kokinda, 497 U.S. 720, 110 S.Ct. 3115, 111 L.Ed.2d 571
(1990) (table set up on sidewalk by group soliciting contributions
and distributing literature); PruneYard Shopping Center v. Robins,
(1981):
Billboards, then, like other media of communication,
combine communicative and noncommunicative aspects. As
with other media, the government has legitimate
interests in controlling the noncommunicative aspects
of the medium ... but the First and Fourteenth
Amendments foreclose a similar interest in controlling
the communicative aspects. Because regulation of the
noncommunicative aspects of a medium often impinges to
some degree on the communicative aspects, it has been
necessary for the courts to reconcile the government's
regulatory interest with the individual's right to
expression.
447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980) (table set up on
plaza of shopping mall by students seeking to solicit signatures
for petitions); Hedges v. Wauconda Comm. Unit School Dist. No.
118, 9 F.3d 1295 (7th Cir.1993) (upholding school policy requiring
that students distribute religious literature from table); Paulsen
v. Gotbaum, 982 F.2d 825 (2nd Cir.1992) (upholding city rule
restricting distribution of literature to stationary tables);
Northeast Women's Center, Inc., v. McMonagle, 939 F.2d 57 (3rd
Cir.1991) (information table set up by protesters at abortion
clinic); Birdwell v. Hazelwood School District, 491 F.2d 490 (8th
Cir.1974) (information table set up by military recruiter in hall
of high school); One World One Family Now, Inc., v. Nevada, 860
F.Supp. 1457 (D.Nev.1994) (tables set up on public sidewalks by
group selling message-bearing t-shirts); One World One Family Now
v. City of Key West, 852 F.Supp. 1005 (S.D.Fla.1994) (same); Texas
Review Society v. Cunningham, 659 F.Supp. 1239 (W.D.Tex.1987)
(tables used by university student organizations distributing
literature); International Society for Krishna Consciousness,
Inc., v. Rochford, 425 F.Supp. 734 (N.D.Ill.1977) (dispute over
regulations governing use of tables by groups soliciting in
airport); LeClair v. O'Neil, 307 F.Supp. 621 (D.Mass.1969) (table
set up in waiting room at welfare office by welfare advocacy
organization).
In fact, the plaintiffs in this case commonly use tables to
display and distribute their literature. See International Caucus
of Labor Committees v. City of Chicago, 816 F.2d 337 (7th
Cir.1987); International Caucus of Labor Committee v. Maryland
Dept. of Transportation, 745 F.Supp. 323 (D.Md.1990);
International Caucus of Labor Committees v. Dade County, Florida,
724 F.Supp. 917 (S.D.Fla.1989). The evidence presented in this
case demonstrates that the plaintiffs used a table in a manner
commonly associated with expression. The district court noted that
"[t]he tables upon which plaintiffs routinely display several
stacks of assorted books, pamphlets, and newspapers enhance
plaintiffs' ability to disseminate literature...." On both of the
occasions during which the plaintiffs were forced to remove their
table, the district court found that they were distributing
literature from the table, and that books and literature were
stacked on it.3
Applying the "commonly associated with protected speech" test
suggested by the Supreme Court, I would conclude that the
plaintiffs' use of tables to facilitate their speech enjoys some
level of First Amendment protection, and that the time, place and
manner analysis should be applied. This conclusion finds support
in the above cited Supreme Court cases involving the analogous
contexts of newsracks, sound amplification devices, and sound
trucks. My conclusion also finds strong support in a recent en
banc opinion of the Seventh Circuit. The plaintiffs' tables in
this case are very similar to the newsstands at issue in Graff v.
City of Chicago, 9 F.3d 1309 (7th Cir.1993) (en banc). One issue
3
The district court noted that at no time did the
plaintiffs' table obstruct the sidewalk or in any way impede the
flow of pedestrian traffic. In fact, the court found that,
"[f]rom the evidence it appeared that the objection [of
pedestrians] was to persons attending the display tables and
approaching pedestrians in an effort to interest them in
available literature."
addressed by the en banc court was whether or not a city's
regulation of the erection of a newsstand on public property
implicates the First Amendment. A plurality of five judges thought
that the erection and maintenance of a newsstand on public property
did not enjoy First Amendment protection at all. See id. at 1314-
17. However, seven judges disagreed. See id. at 1327-28 (Flaum,
J., with whom Cudahy, J., joins, concurring) (writing separately to
"emphasize my belief that the erection and maintenance of newspaper
stands qualifies" as "conduct commonly associated with expression
... [and thus] implicates the First Amendment's protection of
expression."); id. at 1333-34 (Ripple, J., with whom Cudahy, J.,
and Rovner, J., join, concurring) (finding "untenable" the
plurality's position that the placement of a newsstand does not
implicate expressive activity); id. at 1335-36 (Cummings, J., with
whom Bauer, J., and Fairchild, J., join, dissenting) (concluding
that the contention "that Chicago's newsstand ordinance does not
implicate the First Amendment at all because it merely regulates
conduct ... is insupportable."). Thus, a majority of the judges of
the Seventh Circuit concluded that First Amendment concerns were
implicated by the newsstand regulations, and that the time, place
and manner analysis should be employed.
The tables deployed by the plaintiffs here are similar to the
newsstand in Graff, in that the tables provide a method for
displaying expressive materials, and they also enable a single
person to display and distribute a larger volume and a greater
variety of expressive materials more effectively. Functionally, it
would seem to me that the tables in the instant case serve an
almost identical purpose as the newsstand in Graff.
I note that the majority relies heavily on Seventh Circuit
precedent in reaching its conclusion that tables used to facilitate
speech deserve no First Amendment protection whatsoever. See
Majority at 2653 ("Only the Seventh Circuit has directly held that
the erection of a table is not constitutionally protected free
speech."). However, the majority ignores the Seventh Circuit's
recent en banc Graff opinion. Moreover, the two older Seventh
Circuit panel opinions upon which the majority relies, Int. Caucus
of Labor Comm. v. City of Chicago, 816 F.2d 337 (7th Cir.1987) and
Intern. Soc. for Krishna Consc. v. Rochford, 585 F.2d 263, 271 (7th
Cir.1978), do not support the majority's position that the
plaintiffs' activity enjoys no First Amendment protection.
Several reasons persuade me that the majority's reading of
these two cases is mistaken. First, the relevant discussion in
Rochford is ambiguous and cryptic,4 and, as the majority notes,
Rochford 's precedential value is tainted because the relevant
section of the regulation at issue (that dealing with tables) was
not even challenged in that case. Second, the majority's reliance
upon the subsequent City of Chicago case is inappropriate, because
that case expressly treated the plaintiffs' conduct, including the
erection of tables, as enjoying First Amendment protection. City
of Chicago, 816 F.2d at 339 ("There has been no contention that
plaintiffs' activities are not protected by the First
4
The only issue on appeal in Rochford was a vagueness
challenge, but the court volunteered a single additional sentence
nonetheless: "Because this section does not facially restrict
the exercise of guaranteed rights, we do not find it is
constitutionally impermissible." Rochford, 585 F.2d at 270.
Amendment.").5 Finally, even if there had been some implication in
Rochford or City of Chicago that tables used to facilitate speech
enjoy no First Amendment protection, such precedent would have been
undermined by the subsequent en banc opinion in Graff, in which a
majority of the judges on the Seventh Circuit concluded that
newsstands on public property do enjoy First Amendment protection.
I would hold that the district court was correct to apply the
time, place and manner test set forth by the Supreme Court in Ward
v. Rock Against Racism. The majority declined to review the
district court's conclusions with regard to this test, resting
instead on the belief that no such analysis was necessary given the
absence of constitutional significance to be found in the
plaintiffs' table. I have registered my disagreement with this
analysis above; but in light of my inability to persuade my
brethren, I see no need to address the district court's application
of the time, place and manner test.
5
The relevant regulation in City of Chicago prohibited the
erection of tables or other structures in the public areas of
O'Hare airport. It appears that the panel majority thought it
was clear that the restrictions were "[r]easonable time, place
and manner restrictions, based on the nature of [the] place"
because of the city's "valid concerns about expediting the
processing of travelers." City of Chicago, 816 F.2d at 340.
International Caucus of Labor Committees v. City of Montgomery
Court: Court of Appeals for the Eleventh Circuit
Date filed: 1996-07-17
Citations: 87 F.3d 1275
Copy CitationsCombined Opinion